Forced Apart (By the Numbers)

Legal Residents Often Deported for Nonviolent Offenses, National Data Show

I. Overview

A 2007 Human Rights Watch report found that non-citizens who
have lived in the United States for decades, including lawful permanent
residents (persons with "green cards"), have been summarily deported from the
country for criminal conduct, including minor crimes. The deportations occur
after the non-citizen has finished serving his or her criminal sentence. They
have had devastating effects upon many American families, hence the title of that
2007 report, "Forced Apart: Families Separated and Immigrants Harmed by United
States Deportation Policy."[1]
The laws allowing for these deportations (or "removals")[2] were
passed in 1996 and went into effect 12 years ago, in April 1997.

This report reveals for the first time exactly which kinds
of non-citizens have been deported from the United States between 1997 and 2007
under these laws, and for what types of crimes. Our analysis is based on data
Human Rights Watch obtained in August 2008 from US Immigration and Customs
Enforcement (ICE), an agency within the Department of Homeland Security (DHS),
after a two-and-a-half-year battle under the Freedom of Information Act,
described in detail in the appendix to "Forced Apart." We requested these data
(the "ICE data" or the "ICE dataset") to better document the human rights
violations, including impacts upon families, that occur in the course of these
deportations. We also sought the data so that policymakers and the public could
be better informed about ICE's use of its enforcement powers and resources. In
fiscal year 2007 alone, the agency spent $2.24 billion on identification,
detention, and removal of non-citizens, and a minimum of $300 million of that
total was specifically earmarked for deportations on criminal grounds.[3]

One finding that overarches all others in this report is
that ICE is failing to keep accurate data on deportations from the United States. Among the many data deficiencies we have identified, of primary concern is
that ICE has kept the worst quality records about the population with the most
pressing rights issues at stake during deportation: legally present
non-citizens. When these members of the community of the United States are
deported, their absence is felt because shops close, entrepreneurs lose their business
partners, tax revenues are lost, and, most tragically, US citizens and lawful
permanent residents are forced to confront life without their fathers, mothers,
children, husbands, or wives. The data reveal that ICE has kept records on the
criminal conduct forming the basis for removal from the United States for only 10.7 percent of non-citizens who were legally in the United States prior to their deportation. By contrast, ICE has kept records on the criminal conduct
forming the basis for removal for 62.6 percent of non-citizens who were
illegally present. When we raised our concerns with ICE about this enormous gap
in data, including the possibility that individuals were being deported wrongfully
and in violation of their human rights, ICE responded by explaining that it has
updated its computer system and that ICE's "future data will provide more
accurate and consistent information."[4]

While we look forward to these future improvements in ICE's
data management, this explanation was not responsive to our expressed concern
that some portion of the hundreds of thousands of people deported over the past
10 years were potentially removed from the country without legal basis and in
violation of international human rights law. Between 1997 and 2007, 897,099 non-citizens
were deported from the United States after serving their criminal sentences.
Twenty percent were legally in the country, often living legally in the US for decades, before they were deported. It is this group of legally present non-citizens
who experience some of the most egregious human rights violations in being
deported from the United States. Legally present non-citizens hold the
strongest claims against summary deportation as a violation of their
fundamental rights to live as a family, to maintain longstanding ties to their
country of primary residence, and refugees' rights to protection from return to
persecution.

Our analysis of the ICE data also disproves the popular
belief that the agency focuses almost exclusively on deporting undocumented (or
illegally present) non-citizens with violent criminal histories. In reality, 72
percent of those who were deported between 1997 and 2007 for whom we have crime
data were expelled from the United States for non-violent offenses. Of those
for whom we have crime data who were legally in the country, the number is even
higher: 77 percent of those legally present non-citizens were banished from the
United States, often permanently, for non-violent offenses. Only 23 percent
of those legally present non-citizens were deported for a violent or
potentially violent offense.

When specific crimes are examined, the results are even more
telling. The top four crimes forming the basis for deportation of all types of
non-citizens from the United States were: entering the United States illegally (comprising 24 percent of all deportees for whom we have crime data),
driving under the influence of alcohol (7.2 percent), assault (5.5 percent),
and immigration crimes (for example, selling false citizenship papers) (5.5 percent).
In addition to these "top four," the relatively minor crimes for which
non-citizens were most frequently deported include: marijuana possession (2.2
percent), traffic offenses (1.5 percent), and disorderly conduct (0.4 percent).
Of course, non-citizens were also deported for more serious violent crimes,
including robbery (2.2 percent) and aggravated assault (1 percent). But contrary
to popular belief and fear-mongering about criminal behavior by non-citizens, a
tiny minority, just 0.3 percent, were deported for any form of intentional
homicide.

The laws put in place in 1997 were both more
punitive-expanding the types of crimes that can permanently sever a
non-citizen's ties to the United States-as well as more restrictive, meaning
that there are fewer ways for non-citizens to appeal for leniency. Hearings
that used to occur in which a judge would consider non-citizens' ties to the
United States, including their family relationships, business or property
ownership, tax payments, and service in the US armed forces prior to
deportation, were discontinued in 1997 for those convicted of any of a long
list of crimes. No matter how long an individual has lived in and contributed
to the United States and no matter how much his or her spouse and children depend
on that individual for their livelihood and emotional support, there are no
exceptions available.

A retired immigration judge shared the frustration he felt
when he was unable to prevent deportation because of the strict requirements of
the new laws:

My 30-year career with the Department of Justice has been
exciting and stimulating. Each case I hear is a life story. I have been able to
grant refuge to persons who have a genuine fear of persecution. I have been
able to unite or re-unite families. On the other hand, in many cases I have had
to deal with the frustration of not being able to grant relief to someone
because of the precise requirements of the statute, even though on a personal
level he appears to be worthy of some immigration benefit.[5]

This judge is lamenting the fact that ever since the laws
were changed, his hands have been tied: Once he determines that the person
before him is a non-citizen, and determines that the non-citizen has committed
any one of a long list of crimes, the hearing ends and that non-citizen, who by
law must already have served his or her criminal sentence, must be ordered
deported. In addition, once the non-citizen is found to have been convicted of
a crime that prevents him or her from raising any defenses against removal
under immigration law, deportation is required. While the non-citizen can appeal
this decision, his or her ties to the United States, including close family
relationships, cannot be weighed by a higher court.

Judges' inability to protect
family relationships in deportation decisions is a prime concern of Judge Harry
Pregerson in the United States Court of Appeals for the Ninth Circuit. In his
dissent to a 2007 decision deporting the parents of four US citizen children, Judge Pregerson reiterated a theme of several of his dissents when he
wrote:

As I have said before, "I pray that soon the good men and
women in our Congress will ameliorate the plight of families like the
[petitioners] and give us humane laws that will not cause the disintegration of
such families."[6]

Given the restrictive nature of the law, it is perhaps not
surprising that we can reasonably estimate that at least one million spouses
and children have faced separation from their family members due to these
deportations. The ICE data show that of the total number of non-citizens
deported on criminal grounds, 20 percent (179,038) were legally in the country,
73 percent (655,581) were illegally in the country, and 7 percent (62,480) were
in an unknown status. We assume that those in the legally present category were
likely to have developed family relationships inside the United States prior to their deportations. For the other categories, Table 1 illustrates
our estimates of the family members affected by these deportations. The
estimates contained in this table are based on findings by the Pew Hispanic Center and the US Census Bureau.

As Table 1 shows, we estimate that 1,012,734 family members, including husbands,
wives, sons, and daughters, have been separated from loved ones by deportations
on criminal grounds since 1997.

Table 1: Estimated Number of Family Members
Separated by Deportation

A

B

C

D

E

Immigration Status

Individuals Deported on Criminal Grounds

Individuals with at least one US citizen or legally present child or spouse[7]

To be sure, the non-citizens discussed in this report are
being deported for a reason-they have violated the criminal laws of the United States, making them subject to deportation after they have finished serving their
criminal sentences. However, as the data reported here show, many of these
non-citizens are a far cry from the worst and most violent offenders. Of those
who were legally in the country before their criminal conduct, 77 percent were
ultimately deported for non-violent crimes. Some of these non-citizens have
been forced into permanent exile for non-violent misdemeanor offenses, even if
they served a short sentence with a perfect record of good conduct.

Until now, ICE has not made the data in this report
available to the public or to lawmakers. Instead, for reasons that are unclear,
in its regular press updates the agency always highlights its deportations of
violent criminals, but keeps vague the other categories of non-citizens
deported. For example, in a September 2008 press release, ICE touted its
deportation of 1,157 "criminal aliens, immigration fugitives, and immigration
violators" after an "enforcement surge" in California. In the press release,
the agency chose to describe the crimes of two individuals who had already been
deported once, but had since returned to the US: a 41-year-old man from Mexico
with prior convictions for "lewd acts involving a child," "battery," and
"making a terrorist threat," and another Mexican national deported for "selling
heroin." ICE failed to give such detailed information for the 1,155 other non-citizens
deported during the same California operation.[11] ICE has made
numerous other public announcements highlighting the violent crimes forming the
basis for deportations, and underplaying the less violent and more minor
offenses.[12]

This report seeks to end the secrecy surrounding the
deportation from the United States of non-citizens after they have served their
criminal sentences. We hope to set the record straight about what kinds of
non-citizens are being deported and for what types of crimes. We are grateful
to ICE for finally providing to us the data we requested, albeit after a
two-and-a-half-year wait, and after making the implausible and alarming
assertion that providing a response to our request would cause statistical
reporting by the agency to "virtually grind to a halt."[13]

We urge ICE to provide similar information to the public and
to policymakers on an annual basis going forward. Undoubtedly, a better
informed public and government will result in better US immigration policies-an
outcome that is in the interests of the people and government of the United States.

II. Recommendations

To the
President of the United States

Encourage Congress to amend US immigration law to ensure that prior to deportation, all non-citizens have access to a hearing
before an impartial adjudicator, weighing the non-citizen's interest in
remaining in the United States against the US interest in deporting the
individual. At a minimum, ensure that such hearings are available to every
legally present non-citizen as well as all refugees and asylum seekers.

Until US immigration laws are so amended,
instruct Immigration and Customs Enforcement to focus its enforcement
resources on deportations of undocumented non-citizens convicted of
serious, violent crimes in the United States.

To the United States Congress

·Amend immigration laws to
provide access (as was the case prior to 1997) to a balancing hearing before an
impartial adjudicator in which a non-citizen's interest in remaining in the United States is weighed against the US interest in deporting the individual. In the reinstated
balancing hearings, ensure that the following are weighed in favor of the
non-citizen remaining in the United States:

oFamily relationships in the
United States,

oHardship family members will
experience as a result of deportation,

oThe best interests of any
children in the family,

oLegal presence in the United
States,

oLength of time in the United
States,

oPeriod of time after the
conviction during which the non-citizen has remained conviction-free (evidence
of rehabilitation),

oInvestment in the community of
the United States through business enterprises, military service, property
ownership, and/or tax payments, and

oLack of connection to the
country of origin.

·Amend US immigration law to ensure that deportees are protected from return to persecution unless they
have been convicted of a particularly serious crime and are dangerous to the
community of the United States, within the meaning of the 1951 Convention
relating to the Status of Refugees (Refugee Convention).

To the Department of Homeland Security

·Publish annual statistics that
reveal what criminal convictions form the basis for all removals from the
United States on criminal grounds, the immigration status ("lawful permanent
resident," "asylee," etc.) of all persons removed on criminal grounds, and
whether non-citizens removed have nuclear family relationships with US citizens
or lawful permanent residents.

III. Methodology

When Human Rights Watch commenced research for our 2007
report "Forced Apart," we sent a Freedom of Information Act (FOIA) request
together with Boston College Law School on March 15, 2006 to Immigration and Customs
Enforcement to answer basic questions about the legal status of those deported
for crimes (for example, how many were green card holders, how many had other
immigration statuses in the US, and how many were undocumented), the nature and
seriousness of the criminal convictions forming the basis for deportations (for
example, how many convicted of shoplifting, how many of homicide), and the
family relationships of those deported (for example, how many had US citizen or
lawfully present spouses and children).

Human Rights Watch delayed publication of "Forced Apart" for
one year while we waited to receive a response to our FOIA request.Unfortunately,
that response did not come in time, and we had to publish our initial findings
without the requested data. The history of ICE's non-responsiveness to our
repeated requests (which can be viewed in the appendix to "Forced Apart")[14]
suggests at best a lack of commitment to transparency and the goals of the FOIA
legislation; at worst it suggests deliberate stonewalling.

After two-and-a-half years of administrative wrangling,
including an assertion by the agency that providing a response to our request
would cause statistical reporting by the agency to "virtually grind to a halt,"[15]
and with the assistance of pro bono counsel, we ultimately amended our request
and finally received a response on August 13, 2008.[16]

Upon receipt of the data, we began analysis. The data were
first imported into statistics software, Statistical Package for the Social
Sciences (SPSS) version 14.0, which was used for all statistical analysis. Data
were then organized and cleaned, removing empty variable sets resulting from
redactions by ICE (these redacted variables included individual identifiers
such as names and identification numbers). Included in the dataset are the
individual's nationality; the country to which he or she was deported; the date
of deportation; the individual's immigration status; and crime codes indicating
up to five crimes that the individual was arrested for or convicted of (we do
not know conclusively from these data whether every non-citizen was convicted
of the crime listed by ICE), and which formed the basis for the deportation of
the individual from the United States. Unfortunately, despite our request for
additional information, the dataset did not include information about the
marital status or next of kin of the deported individual. The agency claimed
that with regard to these data, "ICE does not track this information and
therefore, has no records responsive to this portion of your request."[17]

We grouped and coded crime data based on descriptions and
categories from the National Crime Information Center (NCIC) codebook. We
assigned each crime to one of six categories by cross-referencing with the NCIC
codebook and ranked them from most to least serious: "offenses involving
violence against persons," "non-violent general offenses with potential to
cause harm," "non-violent drug offenses," "non-violent general offenses," "non-violent
immigration offenses," and "non-violent theft offenses." When individuals in
the dataset were deported for more than one crime, the deportee's most serious
crime was used for analysis.

The immigration status of each individual in the dataset was
decoded using an immigration code database provided by ICE. We then grouped
each of the immigration statuses into three general categories: "illegally
present," "legally present" (of which there are four sub-categories), and "unknown."

Variables were created to allow for grouping of individuals.
Cases were grouped based on the types of crimes committed, the nature of these
crimes (violent versus non-violent), and the individual's immigration status. The
main statistical analysis was conducted by running basic descriptive
statistics, namely frequencies. Cross-tabulations were also conducted to
compare groups. Examples of these cross-tabulations include examining the types
of crimes for which individuals holding specific immigration statuses were
deported. In specific cases illustrating data deficiencies, regression analysis
was used to compare groups of deportees.

IV. US Deportation Law
Fails to Protect Human Rights

Human Rights at Stake
during Deportations for Criminal Conduct

Deportation, though not technically recognized under US law as a form of punishment, is a coercive exercise of state power that can cause a
person to lose her ability to live with close family members in a country she
may reasonably view as "home." Most deportees are barred, either for decades or
in many cases for the rest of their lives, from ever reentering the United States. A governmental decision to deprive a person of connection to the place she
considers home raises serious human rights concerns. Human rights law at a
minimum requires that the decision to deport be carefully considered, with all
relevant impacts and potential rights violations weighed by an independent
decision maker. Unfortunately, the US fails to do this on a daily basis.

Human rights law recognizes that the privilege of living in
any country as a non-citizen may be conditional upon obeying that country's
laws. Non-citizens facing deportation for crimes have broken the laws of the
United States by engaging in criminal conduct, although they are only placed in
deportation proceedings after they have finished serving their criminal
punishment. Contrary to popular belief, not all have broken the immigration
laws of the United States through their presence in the country. In other
words, many of these non-citizens are legally present. Human rights law and the
US constitution afford the most protection to those non-citizens who were
lawfully present in the country before their criminal conduct.

Under international human rights instruments, there is a
consistent body of interpretation and precedent that a country may not
summarily withdraw the privilege of lawful presence without weighing the harm
to the human rights of the non-citizens it allowed to enter. In other words,
non-citizens must have a full and fair deportation hearing-one that allows the
court to carefully weigh any arguments against a particular non-citizen's
deportation, including any rights that might be violated as a result of that
deportation.[18]
The rights at stake when a legally present non-citizen faces deportation are
weighty ones.[19]

First and foremost, at stake for many legally present
non-citizens is the fundamental right to live together with close family
members, including minor children. The international human right to family
unity finds articulation in numerous human rights treaties.[20]
The concept is also incorporated in the domestic law of the United States.[21]

In addition, the principle of proportionality is threatened
when legally present non-citizens face the permanent consequence of deportation
for petty crimes such as shoplifting, possessing stolen property, or simple
possession of small amounts of narcotics. The idea that infringements upon
rights must be proportional is explicitly included in the domestic law of many
countries around the world,including the United States outside of the
immigration context.[22]
Bodies such as the European Union and the United Nations Human Rights Committee
have applied proportionality when analyzing states' decisions to infringe on
important rights, including in the context of deportation.The
European Union has decided that before deporting a long-term resident alien,
states must consider factors such as duration of residence, age, consequences
for the deportee and his or her family, and links with the expelling and
receiving countries.[23]
The Human Rights Committee has explained, in the context of the prohibition of
arbitrary interference with family rights, that "[t]he introduction of the
concept of arbitrariness is intended to guarantee that even interference
provided for by law should be in accordance with the provisions, aims and
objectives of the Covenant and should be, in any event, reasonable in the
particular circumstances."[24]

Moreover, under human rights law, the state power of
deportation should be limited if it infringes upon an individual's right to a
private life, which includes his or her ties to the country of immigration (separate
and apart from any family ties).[25]
Therefore, the non-citizen's ties to the United States should at least be
weighed before the decision to deport becomes final. The US Supreme Court stated in Landon v. Plasencia that "once an alien gains admission to our
country and begins to develop the ties that go with permanent residence his
constitutional status changes accordingly."[26] Despite this
accepted constitutional maxim, a non-citizen's ties to the United States, including length of residence, military service, and business, educational, and
community contributions and connections that are separate from family
relationships, are often not considered under US law when he or she faces
deportation because of a criminal conviction.

Finally, human rights law requires that even a person convicted
of serious crimes must have a hearing to ensure that deportation will not
return that person to a country where his or her life or freedom would be
threatened on account of race, religion, nationality, membership of a
particular social group, or political opinion. This principle of nonrefoulement
places well recognized limits on states' powers to deport refugees. The 1967
Protocol Relating to the Status of Refugees, to which the United States is a
party, binds parties to abide by the provisions of the Refugee Convention,
including that no state "shall expel or return ('refouler') a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership of
a particular social group or political opinion."[27]

Given the imperative of protecting refugees from return to
places where they would likely be persecuted, refugee law permits a very narrow
exception to nonrefoulement, which only applies in extremely serious cases.
Article 33(2) of the Refugee Convention states that nonrefoulement may not be
claimed by a refugee "who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of that
country." Procedures must be in place to ensure careful application of this
narrow exception.[28]

The determination of a particularly serious crime cannot be
merely rhetorical: It requires that the crime in question be distinguished from
other crimes. The United Nations High Commissioner for Refugees (UNHCR) has
defined such a crime as a "capital crime or a very grave punishable act."[29]
Also, to comply with the Refugee Convention, a government must separately
assess the danger the individual poses to the community: "A judgment on the
potential danger to the community necessarily requires an examination of the
circumstances of the refugee as well as the particulars of the specific
offence."[30]Unfortunately, US law falls short of these standards, which are binding
on the United States because of its ratification of the Refugee Protocol.[31]

When Congress changed deportation laws in the mid-1990s, it
broke with international human rights standards in ways never before attempted
in the United States.

1996 Immigration Laws
Withdrew Human Rights Protections

Not every possible argument against
deportation is important enough to call into question the legitimacy of a
hearing that denies such arguments' consideration. For example, a non-citizen
who for reasons of personal predilection prefers the economic opportunities and
climate in one country to another could not legitimately challenge his hearing
under human rights law if he was prevented from making this argument as a
defense to deportation. However, some defenses implicate very important and
fundamental rights that non-citizens should be able to raise in their
deportation hearings in the United States, including the right to family unity,
proportionality, longstanding ties to a country, and the likelihood of
persecution upon return. Since the United States does not allow for a hearing
that weighs these concerns, the human right to raise defenses to deportation is
undermined.

Prior to implementation of the new 1996 laws in 1997, there
were several means by which immigration judges could weigh such factors in
hearings before ordering an individual deported from the United States on criminal grounds. Most important among these were the Immigration and
Nationality Act (INA) Section 244 waiver of deportation; the INA 212(c) waiver
of deportation; and a waiver known as "withholding." Each of these three
waivers was narrowed or eliminated in 1996.

First, the 244 waiver allowed deportation to be suspended
for non-citizens of good moral character who had been present in the United States for a minimum of seven years, and whose deportation would result in extreme
hardship to themselves or to their citizen or lawful permanent resident
spouses, parents, or children.[32]
It was replaced by Congress in 1996 with the narrower 240A(a) waiver, which is
only available to lawful permanent residents who are convicted of a specific
category of crimes including "crimes of moral turpitude" (described below). This
waiver is only available to people who have resided in the United States for a minimum seven years, and whose rehabilitation since their crimes and whose ties
to the United States make their presence in the country in the best interests
of the United States. It is also a very difficult waiver to obtain, as
illustrated by the Mark Ferguson case (described in Chapter V, subsection
"Background on criminal conduct forming basis for deportations"). Moreover, the
240A(a) waiver is not available to anyone convicted of an "aggravated
felony"-which despite its name includes crimes that are neither the most serious
nor violent, as well as some that are not even felonies. For example, despite
the plain meanings of the words "aggravated" and "felony," this category
includes some misdemeanor crimes, even though misdemeanors are generally less
serious and involve less violence than felonies.

Second, Congress completely eliminated the 212(c) waiver,
which previously allowed lawful permanent residents living in the US for at
least seven years to seek discretionary relief from deportation by showing that
negative factors (such as the seriousness of their crimes) were outweighed by
positive ones (such as family ties and evidence of rehabilitation).

Third, amendments to the withholding waiver made it
impossible for any non-citizen convicted of an aggravated felony with a minimum
five-year sentence to obtain refugee protection from deportation to a country
where she would face persecution, which violates the Refugee Convention.

Human rights law requires a fair hearing in which fears of
persecution, proportionality, family ties, and other connections to a
non-citizen's host country are weighed against that country's interest in
deporting him. Unfortunately, with the elimination of several forms of relief
in 1996, that is precisely what US immigration law fails to do. Therefore, the United States is far out of step with international human rights standards and the
practices of other nations, particularly nations that it considers to be its
peers. Many other constitutional democracies require deportation hearings to
weigh such defenses to deportation in their domestic practices. In fact, in
contrast to the United States, all of the governments in Western Europe (except
Luxembourg) offer non-citizens an opportunity to raise family unity,
proportionality, ties to a particular country, and/or other human rights
concerns prior to deportation.[33]

The ICE data presented in this report allow us to illustrate
with stark numbers just how many non-citizens are being deported without the
necessary protections of these important rights.

V. Analyzing the ICE
Dataset

Aggregate
Data

Total number of persons
deported on criminal grounds 1997-2007

The dataset Human Rights Watch acquired from the Immigration
and Customs Enforcement agency of the US Department of Homeland Security in
August 2008 contained information on 897,099 people who were deported on
criminal grounds between April 1, 1997, and August 1, 2007.[34]

In those 10 years and 4 months, deportations occurred each
and every day, representing 3,775 individual days in which non-citizens were
loaded onto buses or planes and removed from the United States. Figure 1 below
reveals the number of persons deported during each calendar year (including
partial years) for which we have data. As the figure shows, there has been an
almost consistent annual increase in the number of deportations for criminal
conduct. In 1998, the first year for which we have complete data, 72,482
non-citizens were deported on criminal grounds. Whether due to stepped-up
enforcement,[35]
or simply reflecting annual non-citizen population growth, by 2006 the number
had increased 42 percent from its 1998 level, to 103,163 deportees.

Figure 1: Total Deportations on Criminal Grounds
Based on ICE Dataset

These aggregate numbers suggest significant data management
problems at ICE. In Table 2 below we compare the dataset that ICE supplied to
Human Rights Watch with data published by the DHS Office of Immigration
Statistics annually in its Yearbook of Immigration Statistics.[36]
The table only includes years for which we have complete data. There is a
significant discrepancy between these two sources regarding the number of
non-citizens deported from the US on criminal grounds. Assuming the ICE dataset
provided privately to Human Rights Watch is correct, the public DHS Yearbooks
of Immigration Statistics are failing to account for between 5.6 percent and
14.3 percent of deportees.

Nationalities deported

Individuals representing 184 different nationalities were
deported after serving their sentences for criminal convictions between April
1, 1997, and August 1, 2007. Mexicans were by far the largest national group,
representing 78.2 percent or 701,700 of those deported, which is not surprising
since individuals of Mexican national origin represent the largest percentage-27.9
percent (or 11.5 million)-of the 37.5 million persons in the foreign-born
population in the United States.[38]
The vast majority of deportees on criminal grounds (97.1 percent of the total)
can be grouped into 25 nationalities, each of which had more than 1,000
deportations, or an average of over 100 deportations per year. Online Appendix
F presents the full list of nationalities deported.[39]

Table 3: Nationalities with Greater than 1,000
Deportees

Nationality

Frequency

Percent

Cumulative
Percent

1

Mexico

701,700

78.2

78.2

2

Honduras

27,594

3.1

81.3

3

El
Salvador

27,348

3.0

84.3

4

Dominican
Republic

22,935

2.6

86.9

5

Guatemala

20,463

2.3

89.2

6

Colombia

14,862

1.7

90.9

7

Jamaica

14,501

1.6

92.5

8

Canada

5,618

0.6

93.1

9

Brazil

4,118

0.5

93.6

10

Haiti

3,946

0.4

94.0

11

Nicaragua

3,595

0.4

94.4

12

Philippines

3,138

0.3

94.7

13

Nigeria

2,712

0.3

95.0

14

Ecuador

2,707

0.3

95.3

15

Peru

2,532

0.3

95.6

16

UK

2,437

0.3

95.9

17

Trinidad
and Tobago

2,357

0.3

96.2

18

Guyana

1,747

0.2

96.4

19

Venezuela

1,323

0.1

96.5

20

Belize

1,240

0.1

96.6

21

China

1,217

0.1

96.7

22

Panama

1,181

0.1

96.8

23

South
Korea

1,157

0.1

96.9

24

Pakistan

1,049

0.1

97.0

25

India

1,038

0.1

97.1

Countries receiving deportees

There were 1,845 non-citizens in the dataset who were
deported from the United States on criminal grounds for whom ICE failed to
record data on the country to which they were sent. The dataset also includes
149 individuals deported to the USSR, a country that by 1997 (the earliest date
of deportations included in the data) had not existed for over five years.[40]
There are also eight deportees in the dataset labeled as having been deported
to the US, indicating a clear data management error.

In the overwhelming majority of cases, the deportee was
returned to his or her country of nationality. However, a total of 3,194
deportees were deported to a country other than that listed as their country of
nationality. This may represent individuals with dual citizenship, but the ICE
dataset only provided one nationality for each person deported, perhaps leaving
off the individual's second country of nationality. It may also point to a
pattern of deporting people to places to which they hold no citizenship ties.
Individuals representing 133 different nationalities were deported to a country
other than their country of nationality. Countries with the greatest numbers of
citizens deported to other countries or territories were Canada (992), the UK (400), Mexico (220), the Netherlands (186), and France (124).[41]

Data on Immigration
Status

Data deficiencies

Although there have been occasional cases in which ICE
erroneously deported US citizens from the United States, the vast majority of
individuals deported for criminal conduct are in fact non-citizens.[42]
However, non-citizens in the United States are assigned one of a wide variety of
immigration statuses, which determines the legality of their presence in the
country and under what terms and conditions they may remain. Thus, the
immigration status of each person deported must be known in order to fully
understand what rights and interests he or she may have.

It is of particular concern that there are 62,480
individuals, representing 7 percent of the total, in the ICE dataset with an
"unknown" immigration status (which includes individuals coded as "other,"
"unknown or not reported," or "withdrawal," as well as those with no
immigration status code). This is of concern because immigration status
determines what an individual's rights are in the deportation process. We have
no way of knowing whether the agency simply failed to document their status and
enter it into its data management system, or whether the agency truly was
unable to place each of these non-citizens in an immigration status category.

In the deportation process, all procedures, penalties, and
possible defenses to deportation stem from an individual's immigration status. This
means that with respect to 62,480 persons, there are serious concerns as to
whether human rights, immigration, and/or constitutional law violations
occurred in these individuals' deportation cases. It is possible that ICE
recorded many non-citizens' immigration status as "other" because it lacked
sufficient documentation to confirm their immigration status. The fact that 18 percent,
or 11,246 of the deportees in the "unknown" category (which includes persons
coded as "other") had been convicted of false citizenship may corroborate this
hypothesis for at least a segment of the total. However, we note that ICE was
able to record nationalities for all deportees in the "unknown"
immigration status category.

Most common immigration statuses among deportees

In total, the people deported
on criminal grounds in the dataset held 84 different immigration statuses. However,
the vast majority (98.4 percent of the total) held one of six statuses (see
Table 4; see Online Appendix G for a frequency table for all immigration
statuses).[43]
A majority of deportees, 73 percent or 655,145, held the immigration status of
"without inspection," meaning that they entered the country without being
inspected by an immigration official at a border crossing or another port of
entry.

Table 4: Six Most Common Immigration Statuses

Immigration Status

Definition

Frequency

Percent

Without
Inspection

These
individuals entered the United States without being inspected by a US border official at a border crossing or another port of entry (that is, an airport or a
seaport).

655,145

73.0

Immigrant

These
individuals are lawful permanent residents, or green card holders. The lawful
permanent resident status allows for an unlimited lawful presence in the United States, allows these individuals to work legally, and allows for eventual
citizenship through naturalization.

87,844

9.8

Unknown

Coded
as "other," "withdrawal," or "unknown or not reported" by ICE.

62,480

7.0

Parolee

These
individuals have been granted time-limited, but renewable, permission to
remain in the United States. Parolee status is granted under the discretion
of the Attorney General and often, though not always, is accompanied by legal
permission to work in the United States. The Cubans who entered the United States through the Mariel boatlift in 1980 are an example of parolees.

29,530

3.3

Visitor
for Pleasure

These
are non-citizens legally inside the United States until the expiration of
their time-limited tourist visas.

26,312

2.9

Expedited
Removal Alien

These
are non-citizens who have been subject to an expedited process because they
have been apprehended within 100 miles of the border, or have arrived at a
port of entry without valid entry documents and have made a request for
asylum from persecution or protection against return to torture. They have
permission to remain in the United States until their claims have been heard
in the expedited removal hearings process.

21,333

2.4

Total

882,644

98.4

Legal versus illegal immigration status

We have placed all 84
immigration statuses into one of six categories based on the legality of the
non-citizen's presence in the United States. A table provided at Online
Appendix H provides an explanation of legality for each of these 84 immigration
statuses.[44]
The 179,038 individuals (constituting 20 percent of the total number of
non-citizens in the dataset) who were legally present in the US and were
subsequently deported on criminal grounds after serving their criminal
sentences are of particular importance from a human rights perspective, as this
group (as emphasized in Chapter IV) has the strongest rights claims against
summary deportation.

This group is also worth close examination because such an
examination counters alarmist and ill-informed statements giving the impression
that deportation policies focus exclusively on people who are illegally in the
country and who commit violent crimes. An example of such a claim was made by
Representative Steve King (R-Iowa), citing statistics without sources:

[I]f we would have enforced our domestic laws so when
people violated immigration laws internally, domestically; if we did those
things, then we wouldn't have illegal aliens in America to commit the crimes.
And that would equate and extrapolate down to 12 fewer murders every day, 13
fewer people that die at the hands of negligent homicide, primarily the victims
of drunk drivers, at least 8 little girls that are victims of sex crimes on a
daily basis, and that number could be well higher than that … This is a
slow-rolling, slow-motion terrorist attack on the United States costing us
billions of dollars and, in fact, thousands of lives, and we have an obligation
to protect the American people, and that means seal and protect our borders.[45]

Not only do the deportation laws sweep up people legally and
illegally present alike, most of those deported have not committed violent
offenses, as will be demonstrated below.[46] Similarly, Bill
O'Reilly often lumps criminality and illegal presence together in his Fox News
television show, The O'Reilly Factor. In May 2007, with reference to
several incidents of criminal investigations of non-citizens, he said, "The
problem of criminal illegal aliens is now at a tipping point in the USA," and that there is "anarchy" in the immigration zone, with the government "doing
little."[47]
In fact, the government appears to be doing more than targeting "criminal
illegal aliens." The totals presented in Table 5 below show that at least
one-fifth of those deported under these laws were in the US legally.

Table 5: Legality of
Immigration Status

Status

Frequency

Percent

Illegally Present

655,581

73.1

Legally
Present

179,038

20.0

Unknown

62,480

7.0

Total

897,099

100.0

We have further analyzed the "legally present" category to
highlight the differences within this category between individuals with time
limits on their stays within the US and those with adjustable or renewable
statuses. As Table 6 reveals, nearly half, or 89,426 of those with a "legally
present" immigration status had no time limits on their stay. Thirty-one
percent of those with a "legally present" immigration status had a finite time
limit on their stay. It is unknown how many of these individuals had overstayed
their visa at the time of arrest or deportation. The other 18.9 percent of
those in the "legally present" immigration status category had time limits but
had either a renewable or adjustable status that would have enabled them to
change their status if the Bureau of Citizenship and Immigration found in their
favor.

Table 6: Legality of Immigration Status

Immigration Status

Frequency

Percent

Illegally
Present

655,581

73.1

Legally
Present, no time limit on stay, renewable/adjustable status

89,426

10.0

Legally
Present, with time limit on stay

55,728

6.2

Legally
Present, with time limit on stay, but renewable/adjustable status

32,813

3.7

Legally
Present, with time limit on stay, but can adjust status if court finds in favor

1,071

0.1

Unknown

62,480

7.0

Total

897,099

100.0

Of those with a "legally present" immigration status, 49
percent held the immigration status of "immigrant," which means that the
individual was a lawful permanent resident or a "green card" holder, a status
with no time limit on stay in the United States. Table 7 displays the eight
most common immigration statuses in the "legally present" category, comprising
96.5 percent of all legally present non-citizens.

Legally
present, with time limit on stay, but renewable / adjustable status

Visitor
for Pleasure

26,312

14.7

80.3

Legally
present, with time limit on stay

Expedited
Removal Alien

21,333

11.9

92.2

Legally
present, with time limit on stay

Visitor
for Business

2,848

1.6

93.8

Legally
present, with time limit on stay

Student

1,913

1.1

94.9

Legally
present, with time limit on stay

Visitor
without Visa 90 days

1,758

1.0

95.9

Legally
present, with time limit on stay

Refugee

1,038

0.6

96.5

Legally
present, no time limit on stay, renewable / adjustable status

Data on Criminal Conduct forming Basis for Deportations

Data deficiencies

The ICE dataset contained up
to five criminal conviction codes for each individual non-citizen. In total, non-citizens
in the dataset were arrested for 356 distinct crimes (see Appendix A for a
frequency table of criminal offense codes). We categorized all of these crimes
into one of six categories, by cross-referencing with the National Crime Information Center codebook:

Offenses involving violence against persons,

General offenses with potential to cause harm,

Non-violent drug offenses,

Non-violent general offenses,

Non-violent immigration offenses, and

Non-violent theft offenses.

These categories were ranked for level of seriousness. Out
of the entire dataset, 24 percent (or 215,308 cases) had data for more than one
crime committed. When individuals in the dataset were convicted of more than
one crime, we used the deportee's most serious crime for our analysis.

Surprisingly, 395,272 (44 percent) of the cases contain no
crime data. We are concerned about this result for much the same reason we are
concerned to find 7 percent of cases containing no immigration status
information. Obviously, each non-citizen's criminal conduct is an extremely
important factor in determining his or her rights and defenses to deportation
under US immigration law. Moreover, we are particularly disturbed because the
dataset provided to us was specifically produced by ICE in response to our
request for "individual level case-by-case records for each non-citizen removed
on criminal grounds" (see Appendix B for our amended request letter to ICE). We
defined "non-citizen removed on criminal grounds" through reference to the 40
sections of the Immigration and Nationality Act that enumerate all types of
criminal conduct that can render someone subject to deportation from the United States. The failings evident in the ICE data management system-particularly when
data were produced in response to a request for records specifically about
deportees with criminal conduct, and nevertheless no information about
criminal conduct was recorded for 44 percent of cases-should be of serious
concern to both the Department of Justice and Congress, and inquiry should be
made as to whether individuals have been deported without regard to criminal
record.

Our concerns about the lack of crime data prompted us to
write to ICE on October 3, 2008, presenting these data deficiencies and
offering the agency an opportunity to provide us with any explanations or
clarifications (see Appendix D). The agency responded to our concerns in a
letter dated February 2, 2009, stating, "we can report that ICE is in the
process of improving its data management systems to more consistently record
criminal conviction codes (NCIC codes) for all aliens removed from the United States with criminal convictions." The letter goes on to explain that the previous
data management system was retired in August 2008 and replaced with a new
system that ICE officers have attended trainings on, a "Data Quality and
Integrity Unit" has been set up, and internal policy guidance on data entry,
including on criminal history, was distributed to ICE staff through December
2008.[48]

Background on criminal conduct forming basis for deportations

Under US immigration law there are two broad categories of criminal conduct that can form the basis for an
individual's deportation: aggravated felonies and crimes of moral turpitude.
Many types of crime fit under these two broad headings. Since immigration law
was changed in 1996, aggravated felonies include the following broad categories
of crime:

any crime of violence (including crimes involving a
substantial risk of the use of physical force) for which the term of
imprisonment is at least one year,

any crime of theft (including the receipt of stolen
property) or burglary for which the term of imprisonment is at least one
year, and

illicit trafficking in a controlled substance, including a
federal drug trafficking offense,

illicit trafficking in a firearm, explosive, or
destructive device,

federal money laundering or engaging in monetary
transactions in property derived from specific unlawful activity, if the
amount of the funds exceeded $10,000,

any of various federal firearms or explosives offenses,

any of various federal offenses relating to a demand for,
or receipt of, ransom,

any of various federal offenses relating to child
pornography,

a federal racketeering offense,

a federal gambling offense (including the transmission of
wagering information in commerce if the offense is a second or subsequent
offense) that is punishable by imprisonment of at least one year,

a federal offense relating to prostitution,

a federal offense relating to peonage, slavery,
involuntary servitude, or trafficking in persons,

any of various offenses relating to espionage, including protecting
undercover agents or classified information, sabotage, or treason,

fraud, deceit, or federal tax evasion, if the offense
involves more than $10,000,

alien smuggling, other than a first offense involving the
alien's spouse, child, or parent,

illegal entry or reentry of an alien previously deported
on account of committing an aggravated felony,

an offense relating to falsely making, forging,
counterfeiting, mutilating, or altering a passport or immigration document
if (1) the term of imprisonment is at least a year and (2) the offense is
not a first offense relating to the alien's spouse, parent, or child,

failure to appear for service of a sentence, if the
underlying offense is punishable by imprisonment of at least five years,

an offense relating to commercial bribery, counterfeiting,
forgery, or trafficking in vehicles with altered identification numbers,
for which the term of imprisonment is at least one year,

an offense relating to obstruction of justice, perjury or
subornation of perjury, or bribery of a witness, for which the term of
imprisonment is at least one year,

an offense relating to a failure to appear before a court
pursuant to a court order to answer to or dispose of a charge of a felony
for which a sentence of two years' imprisonment or more may be imposed,
and

While some of these aggravated felonies would seem to be
severe offenses for which deportation is an appropriate punishment, in practice
it is not always clear cut. For example, Ramon H.[51]
(a pseudonym) is originally from Mexico. He married a United States citizen, Pamela H. (a pseudonym), in 1990. In February 1993 Ramon pled guilty to lewd
or lascivious acts with a minor. After his plea, he completed his sentence of probation,
according to his probation officer, "in an exemplary fashion."[52] Ramon
H. applied to adjust his status to that of a lawful permanent resident through
his US citizen wife in 1996, but in 2001 the Department of Homeland Security
informed him that he was deportable for his criminal conviction, and he was
placed in removal proceedings in August 2004.

The circumstances of Ramon H.'s crime were later described
by his niece Kelda in a sworn affidavit that she submitted during his
deportation hearing. Kelda explained that during a family gathering, her uncle
Ramon patted her "lightly on the butt … for no apparent reason."[53]
Kelda mentioned the incident to a friend at school, who in turn told a teacher,
and the school called the police, resulting in Ramon H.'s conviction and order
of deportation.

Ricardo S. also faced separation from his US citizen wife and two children because of an aggravated felony drug conviction.[54]
He was ordered deported because of a conviction for possession with intent to
distribute of a small amount of heroin, for which he was advised by a defense
attorney to plead guilty, and in return he received no jail time but was
ordered to pay a fine of $500 and serve two years probation, which he completed
without incident. Ricardo S. had no other criminal convictions and worked in
construction in the Chicago area. His conviction was brought to the attention
of the immigration authorities because he and his US citizen wife, who were
married in 2001, applied to adjust Ricardo S.'s status to that of a lawful
permanent resident. Looking back on his one conviction, Ricardo S. said,

I feel bad about it because of my family. If I was by
myself, without my wife or any children, it would have been a lot different.
But I feel real bad for them…. Maybe if they would have caught me with a ton of
drugs [I could understand them wanting to deport me], or if I ever murdered
somebody. But it was the only one…. I wish that [when he applied for his green
card] they would have just told me I didn't qualify. I have kids who are
citizens and a wife who is a citizen but I wish they would have just let me
continue working to support my family….[55]

Non-citizens are also deportable if they are convicted of a
"crime involving moral turpitude" within five or in some cases 10 years after
they enter the United States and their crime carries a sentence of one year or
longer.[56]
A non-citizen is also deportable if she is convicted of two or more crimes of
moral turpitude at any time after admission.[57] In 1997 Congress
did not change the crimes considered to meet the definition of "moral
turpitude." However, it did make it more difficult for non-citizens with
convictions for crimes of moral turpitude to defend against deportation.

For example, Mark Ferguson, a native of the United Kingdom
who had lived in the United States lawfully as a green card holder since the
age of three, was convicted of two or more crimes of moral turpitude for
"mooning" (showing his nude buttocks to) women.[58] Ferguson testified that in the past he had mooned a woman about once every six months, but
was under psychiatric treatment for the practice, and under treatment had not
reoffended for two years. He submitted expert testimony that he was not
sexually aroused by the practice, had an "unusually low" chance of reoffending,
and had strong family connections to the United States, including because he
was a primary caregiver for his deceased sister's children. The Board of
Immigration Appeals found that although he was statutorily eligible for waiver
("cancellation of removal") under INA Section 240A, cancellation of Ferguson's removal would not be in the interests of the United States. On appeal, the
court found that it had no power to review that discretionary decision.[59]

Types of crime forming basis
for deportations

Human Rights Watch analyzed the 356 crime codes provided to
us by ICE and classified each into one of six categories. Appendices C and E
provide more details on the crimes that fit within each of these categories.
Table 8 and Figure 2 provide information on the frequency with which
individuals were deported from the US for crimes falling into each of these six
categories.

If we combine "general offenses with potential to cause harm"
with "offenses involving violence against persons" to create a "violent offenses"
category, we see in Table 9 and Figure 3 that the vast majority of deportees
for whom we have crime data (72.2 percent) were deported for non-violent
crimes; only 27.8 percent were deported for violent or potentially violent offenses.

Table 9: Violent v.
Non-Violent Offenses

Offense Type

Frequency

Percent

Non-Violent Offense

362,192

72.2

Violent or Potentially Violent Offense

139,635

27.8

Total

501,827

100.0

Figure 3: Violent v.
Non-violent Offenses

Crime Data Combined
with Immigration Status

Data deficiencies

Examining all 897,099 cases by the legality of the
individual's immigration status and the offense for which he or she was
deported can give a general sense of the types of non-citizens being deported
from the United States for different kinds of crimes. It is significant that
only 5.8 percent of legally present non-citizens in the data set were listed as
deported for a violent or potentially violent offense. However, it is of serious
concern that 74.8 percent of those listed in the data set as legally present
were deported without any crime data recorded. This raises the question as to
whether there is a serious problem in data recording practices, or deportation
practices, or both. Without accurate crime data, we must also raise the
possibility that some of these people were unlawfully deported in violation of
both US and international human rights law. Moreover, without accurate crime
data, the US public and government cannot know exactly how many legal, long-term
residents or other legally present non-citizens have been deported from the
United States for crimes that are petty or serious.

Non-citizens who are legally present are the group most
likely to have serious human rights claims against summary deportation, and
while they represent 20 percent of all those deported, they (disproportionately)
represent 33.9 percent of all those deported without crime data. ICE failed to
record any crime data for 94.9 percent of lawful permanent residents (actual
green card holders). Our concern with the failure to record crime data is not a
mere question of poor recordkeeping: It is based on the fact that for those
non-citizens who were legally in the country, certain criminal convictions
would form the only legal basis for their deportations, raising the question as
to whether these people were deported unlawfully.

Thirty-seven percent of illegally present individuals recorded
in the dataset as deported also do not have any crime data. (Although this too
raises serious questions about the data management capacities of ICE, one
possible explanation for at least some of these omissions is that these
individuals were deported solely on the basis of their undocumented status, but
without any allegations or evidence of criminal conduct. However, if this were
the case, it still poses the question why these hundreds of thousands of
persons were included in a dataset specifically produced to contain only data
relevant to persons deported on criminal grounds.) While illegally present
individuals account for 73 percent of all those deported, they (disproportionately)
account for 89 percent of all individuals deported for a violent or potentially
violent offense. It is possible that these percentages may be skewed because of
the large number of cases in all immigration status categories without crime
data. Nonetheless, using the ICE data, it appears that illegally present
individuals are deported for violent or potentially violent offenses at a
greater rate than legally present individuals (see below, section "The Seriousness
of Criminality within All Immigration Status Categories").

There is clearly a difference between how well crime data
are recorded for individuals with different immigration statuses. The disparity
is at its greatest when we examine those who are illegally present-those with a
"without inspection" or "stowaway" immigration status code-versus those who are
legally present. Those holding an "illegally present" immigration status code
are actually one of the groups with the greatest probability of having their
criminal conduct documented. In the entire dataset, 56 percent of deportees had
crime data. For illegally present non-citizens, this number increases to 62.6
percent.

The trend reverses for those in the "legally present"
category. Only 25.2 percent of cases with a "legally present" immigration
status have crime data.

We chose to do further analysis on the data corresponding to
the three legally present immigration statuses of "immigrant," "parolee," and "refugee."
This is because the deportations of persons in these categories raise the
greatest human rights concerns: "immigrant" (because they are lawful permanent
residents), "parolee" (because they are legally in the country, in most cases
for humanitarian reasons), and "refugee" (because they are legally in the
country due to fears of persecution at home). Unfortunately, we have discovered
that these three immigration statuses of most concern have even less accurate
crime data. As shown in Table 10 below, only 5.1 percent of those with an
"immigrant" status, 9.4 percent of "refugees," and 27.5 percent of "parolees"
have crime data.

Table 10: ICE Management of Crime Data

Cases
Included

Percent
of cases with crime data

Percent
of cases without crime data

Frequency
of cases with no crime data

"Immigrant"
status code

5.1

94.9

83,391

"Parolee"
status code

27.5

72.5

21,398

"Refugee"
status code

9.4

90.6

940

Immigrant,
Parolee, and Refugee combined

10.7

89.3

105,729

All
Immigration statuses in "Legally Present" category

25.2

74.8

133,918

"Without
Inspection" Immigration Status Code

62.6

37.4

244,990

"Unknown"
status code

73.8

26.2

16,364

All
Cases

56.0

44.0

395,272

If, as was requested by Human Rights Watch, the dataset
recorded everyone deported for some sort of criminal conduct, ICE
systematically failed to record crime data for those who were legally in the
country (especially those in the "immigrant," "parolee," and "refugee"
categories). The extent of the difference in how often crime data were recorded
between this group and the illegally present group implies that there is some
sort of institutional dysfunction at work. In fact, these three types of
legally present deportees combined were 14 times less likely to have
crime data recorded than illegally present deportees.[60]

The immigration status category of "unknown" is also
particularly problematic. As noted above, individuals in this category held one
of three immigration statuses, "other," "unknown or not reported," or
"withdrawal." Of these individuals, 26.2 percent have no crime data, meaning
there were 16,364 people deported for a criminal offense for whom we not only
do not know their immigration status, but ICE also made no record of the crime
for which they were deported. This "double unknown" of immigration status and
criminal offense highlights extraordinary gaps in ICE data management.

The Seriousness of Criminality within All Immigration
Status Categories

By removing all cases without crime data in the ICE dataset,
we see that the vast majority of deportees were deported for a non-violent
offense. In total, across all immigration status categories, more than
two-thirds of those for whom we have crime data were deported for a non-violent
crime-70.5 percent were deported for a non-violent offense and 29.5 percent
were deported for a violent or potentially violent offense.

As Figure 4 shows, illegally
present non-citizens were more likely to have been deported for a violent or
potentially violent offense and less likely to have been deported for a
non-violent offense than legally present non-citizens. Since the laws allowing
for these deportations were passed with a clear focus on those responsible for
violent offenses, the higher percentages of deportation for violent offenses
among undocumented persons raises the important policy question why enforcement
resources are not focused exclusively upon persons present in the United States
in an undocumented or illegal status, who were also involved in serious,
violent criminal offenses.

Figure 4: Criminality by Immigration status

Immigration status: Legally present

Although the "legally
present" immigration status category represents 20 percent of all cases, it (disproportionately)
represents 33.9 percent of all cases with no crime data. As noted above, of
those in the "legally present" category, 74.8 percent have no crime data.

It is both confusing and problematic that the crime code
most frequently recorded for the "legally present" category was "illegal entry"
(see Appendix E). This implies that even though these non-citizens were in the
country with a legal immigration status, they were convicted of the crime of
"illegal entry." We can only speculate as to why this would be the case. It may
be that a person who originally was allowed to enter the country in a legal
status was subsequently discovered to have falsified information that
retroactively made his or her entry illegal, or that his or her legal status
did not permit multiple trips out of the US, making any subsequent entry
"illegal," although it seems unlikely that either of these scenarios would have
occurred in more than 10,000 cases. Alternatively, it may be the case that
these anomalies are due, once again, to data management failures by ICE.

Nevertheless, for deportees in the "legally present"
category for whom we do have crime data, it is significant that 77 percent of
them were deported for non-violent offenses, as shown in Figure 4. A more
detailed description of those offenses is provided in Appendix E.

Immigration status: Lawful permanent resident

Representing 49 percent of those in the "legally present"
category, 87,844 individuals hold the immigration status of "immigrant," which
is the status for persons in the United States as lawful permanent residents
(green card holders). As noted above, the vast majority, 94.9 percent, of those
with an "immigrant" status have no crime data: Although these non-citizens have
been afforded the most "privileged" immigration status available in the United States by immigration authorities, no one seems to have recorded the underlying
criminal basis for their deportation.

Although only 5 percent of individuals holding an
"immigrant" status and recorded in the dataset as deported have crime data,
this still allows us to examine the criminal convictions of 4,453 non-citizens
in this status grouping, which is valuable to analyze because of the sheer
numbers involved. Table 11 shows that of this subgroup of "immigrant" status
with crime data, the large majority, or 68 percent, were deported from the United States for non-violent offenses. Appendix E gives more detailed information on the
criminal conduct forming the basis for deportations of persons in the
"immigrant" status category.

Immigration status:
Parolee

The immigration status of
"parolee" is used for individuals who have been granted time-limited but
renewable permission to remain in the United States. "Parolee" status is
granted at the discretion of the Attorney General and often, though not always,
is granted to persons with humanitarian reasons for not being able to return to
their home countries. In addition, it is often, though not always, accompanied
by legal permission to work in the United States. The ICE dataset contained no
crime data for 21,398, or 72.5 percent, of all parolees. For those who do have
crime data, in 79.5 percent of cases a non-violent crime formed the basis for
their deportation from the United States, as shown in Table 12. Appendix E
gives more detail on the most common crimes forming the basis for deportations
of parolees.

Immigration status: Refugee

There were 1,038 deportees with the immigration status of
"refugee." Refugees may apply for legal permanent residence in the United States after one year of residence. Refugees, like immigrants and parolees, are
individuals with serious human rights interests at stake when they are facing
deportation on criminal grounds (US obligations in this regard, as a party to the
1967 Protocol Relating to the Status of Refugees, are discussed in Chapter IV).
Again, the vast majority of refugees deported, 90.6 percent, did not have crime
data recorded by ICE.

As is perhaps obvious, the deportations of refugees on
criminal grounds raise serious human rights concerns because their removals
from the United States raise questions of life and death. Unfortunately, due to
the restrictive laws put in place in the United States in 1997, refugees facing
deportation on criminal grounds are often barred from raising their fears of
persecution during their deportation hearings. The crimes for which some have
been deported are not serious enough to deprive the person of refugee status
under the Refugee Convention, and therefore in accordance with refugee law they
should be protected from return. Nevertheless, because US law does not allow them to raise these fears in a deportation hearing, an unknown number of them in
fact may have been returned to places where they were subjected to persecution.
US law does allow for persons to raise concerns that they will face a real
risk of torture prior to deportation, regardless of their criminal conviction.

However, there are many refugees who fear persecution but
not torture-for example, an outspoken member of the political opposition might
fear being imprisoned without trial if he were deported, which is a form of
persecution but not torture. The United States is regularly violating these
refugees' rights by deporting them for criminal convictions without first
providing a fair hearing on their fears of persecution, and protecting them
from return if those fears are proved valid. Table 13 shows that 62 percent of
refugees for whom we have crime data were deported under such perilous
conditions for a non-violent offense, and 38 percent were deported for a
violent or potentially violent offense. Appendix E gives more details on the
most common offenses forming the basis for the deportations of refugees from
the United States.

Immigration status:
Expedited removal pending credible fear

The immigration status of "expedited removal pending
credible fear" raises concerns similar to those presented by refugees. Persons
holding this immigration status can be considered applicants for refugee
status, since they were placed in summary removal procedures, but pending a
credible fear interview. Credible fear interviews are the first step that
persons who flee to the United States because of a fear of persecution must
undergo.

While the persons in this category did not have their status
resolved prior to the time of deportation from the United States, it can be
assumed that they all raised fears of persecution with immigration authorities,
and that for some percentage those fears were well-founded, making them genuine
refugees. Table 14 shows that 76.7 percent of these people for whom we have
crime data were deported for non-violent offenses. Appendix E gives more detail
on the most common offenses forming the basis for the deportations of persons
awaiting their credible fear interviews.

Immigration status:
Illegally present

For this report, the 436 deportees with the immigration
status of "stowaway" were combined with those with the "without inspection" immigration
status to make up the "illegally present" category.[61]

Of all cases in the ICE dataset, 73 percent (or 655,145) of
the deported non-citizens held the immigration status of "without inspection,"
meaning that they entered the country in an undocumented status without being
inspected by an immigration official at a port of entry. Of these individuals
recorded in the dataset as deported, 244,804, or 37.4 percent, do not have
crime data. Of all cases without crime data, 61.9 percent have the immigration status
of "without inspection." In contrast to the other instances described above, in
which ICE's failure to include crime data is of serious concern, the failure to
include crime data for those who entered without inspection may have a
plausible explanation (as discussed above, subsection "Types of crime forming
basis for deportations"): these non-citizens could have been deported simply on
the basis of their undocumented status alone.

In fact, of those non-citizens with an illegally present
immigration status who do have crime data, 24.1 percent, or 98,940, were
convicted of the crime of "illegal entry." In other words, not only were these
persons ordered deported because they entered the United States in an
undocumented status, which is enough under US law to deport them, but in
addition, they were convicted of the federal crime of "illegal entry" and
sentenced to criminal punishment prior to their removal. Tables 15 and 16 show
the types of crimes and general categories of offenses for persons illegally in
the country and subsequently deported after criminal conduct.

For those people with crime data and an illegally present
immigration status, 69.7 percent were deported for a non-violent offense. Individuals
with a "without inspection" immigration status were most often deported for a
non-violent immigration crime. In fact, 98,940 individuals holding this status
were deported for the non-violent immigration crime of "illegal entry." Appendix
E shows the 10 most common offenses forming the basis for the deportation of
those with an illegally present immigration status.

Of those with an unknown immigration status, 49.7 percent
were convicted of one of three immigration offenses. This may imply that they
were in the United States illegally, despite ICE's failure to record an
immigration status for them. Appendix E provides more detail on the most common
criminal offense codes for people in the unknown immigration status category.

VI. Conclusion

In 1996, when Congress passed the harshest immigration laws
in decades, its attention was focused on deporting non-citizens who were
involved in serious, violent crimes. What is less clear is whether Congress
understood that the sweeping laws it passed would affect people involved in
minor non-violent criminal conduct, and that those laws would be applied not
only to undocumented persons, but also to those who had been living legally in
the United States, in many cases for decades.

The data analyzed in this report show that irrespective of
what Congress intended, legally present non-citizens are being deported most
often for non-violent offenses, after duly serving their criminal sentences. In
fact, one-fifth of all deportations made in the 12 years the laws have been in
effect have been of legally present non-citizens. And, because these
deportations are mandatory and happen in a summary fashion, there are almost no
checks on whether they make sense.

In a time of fiscal crisis, the facts presented here raise
the question whether Congress made the right choice in marshalling ICE's
enforcement resources ($2.2 billion in 2007) to focus on minor non-violent
offenses and legally present non-citizens, not least because these deportations
raise serious human rights concerns. In fact, due to the deportations on
criminal grounds described in this report, we estimate that at least 1 million
family members, including husbands, wives, sons, and daughters, have been
separated from loved ones since 1997. The secrecy surrounding these
deportations and the egregious deficiencies in ICE data management may help to
explain why there has been little attention paid to ensuring ICE does not
violate the rights of non-citizens during deportations, or to ensuring that
ICE's budget is well spent. Now, with more detailed information, the US government can take another look at whether legally present non-citizens who have
already served their criminal punishments should be subjected to the additional
penalty of deportation with few safeguards for their rights. Human Rights Watch
urges Congress and the Executive to take that second look.

Acknowledgments

This report was jointly authored by Alison Parker, deputy
director of the US Program of Human Rights Watch, and Brian Root, consultant to
the US Program. The report was edited by David Fathi, director of the US
Program at Human Rights Watch; Dinah PoKempner, general counsel; and Ian Gorvin, senior program officer. Layout and production were coordinated by Grace Choi,
publications director, Fitzroy Hepkins, mail manager, and Abigail Marshak, US
Program associate.

We would like to thank Dan Kanstroom at Boston College Law School for originally joining with Human Rights Watch to request these data
from ICE, and we would like to thank ICE for providing us the data, albeit
after a two-and-a-half-year delay. For assistance with our FOIA request we
would like to thank pro bono counsel Ethan Strell and Catherine Sheehy of the
law firm of Carter Ledyard & Milburn LLP. We would also like to thank
Courtney McDermed of the law firm of Van Der Hout, Brigagliano and Nightingale,
LLP, for her review of the immigration status categories presented in this
report, and Stephanie Goldsborough, Esq. for her expert review of this report.

Appendix A: Frequency
Table for Criminal Offense Codes

Note:
Only most serious crime included when deportee was convicted of more than one
offense. Remainder of table (displaying remaining 1.7 percent of deportations)
is available at Online Appendix I.[62] Cumulative total may not add up due to rounding.

Appendix B: Amended FOIA Request and Final Correspondence
Received

The following descriptions of criminal conduct within each
crime category include all deportees, regardless of immigration status.

Offenses Involving Violence against Persons

There were 67 crimes in the most serious crime category,
"offense involving violence against persons." Nine of these crimes accounted
for 85.2 percent of the non-citizens whose most serious crime was in this
category. Each of these nine crimes formed the basis for deportation in more
than 1,000 cases.

Most Common Crimes in "Offense Involving Violence against Persons" Category

Offense

Frequency

Percent

Cumulative
Percent

ASSAULT

27,802

40.7

40.7

ROBBERY

11,135

16.3

57.0

AGGRAVATED
ASSAULT – WEAPON

5,412

7.9

64.9

SEXUAL
ASSAULT

3,751

5.5

70.4

SEXUAL
OFFENSE – AGAINST A CHILD – FONDLING

2,942

4.3

74.7

SIMPLE
ASSAULT

2,840

4.2

78.9

AGGRAVATED
ASSAULT – FAMILY – STRONG ARM

1,810

2.6

81.5

HOMICIDE

1,443

2.1

83.6

KIDNAPPING

1,127

1.6

85.2

Non-Violent General Offenses with Potential to
Cause Harm

More than ninety-six percent of all non-citizens deported
for a "non-violent general offense with the potential to cause harm" were found
to have been convicted of one of nine crimes as their most serious. Each of
these offenses formed the basis for deportation in more than 1,000 cases. It is
important to note that this category includes crimes that may not be considered
violent at all, such as "homosexual sex." There were 41 different criminal
offenses in this crime category.

Most Common Crimes in "Non-Violent General Offense with Potential to Cause
Harm" Category

There were 43 different criminal convictions or forms of
conduct that were categorized as non-violent drug offenses. Of deportees who
were deported for a non-violent drug offense, 87 percent were deported for one
of ten crimes as their most serious, each representing over 3,000 cases.

There were 121 separate offenses in the dataset that were
categorized as a non-violent general offense. Of the 30,821 people deported for
a non-violent general offense, 69.8 percent were deported for one of ten crimes
as their most serious. More than 900 deportees had been convicted of each of
these 10 crimes.

Most Common Crimes in "Non-Violent General
Offense" Category

Offense

Frequency

Percent

Cumulative Percent

TRAFFIC OFFENSE

7,336

23.8

23.8

TRESPASSING

2,487

8.1

31.9

DISORDERLY
CONDUCT

2,157

7.0

38.9

PROBATION
VIOLATION

1,861

6.0

44.9

UNAUTHORIZED
USE OF VEHICLE

1,607

5.2

50.1

POSSESSION
OF WEAPON

1,565

5.1

55.2

RESISTING
OFFICER

1,452

4.7

59.9

FAILURE
TO APPEAR

1,070

3.5

63.4

PUBLIC
ORDER CRIMES

989

3.2

66.6

OBSTRUCTION
OF POLICE

972

3.2

69.8

Non-Violent Theft Offenses

There were 79 different offenses categorized as a
non-violent theft offense. Of the 38,655 people deported for a non-violent
theft crime, 82.9 percent committed one of nine crimes as their most serious. Each
of the top nine crimes included more than 1,000 cases.

[2]Throughout
this report, we use the term "deportation" and "removal" interchangeably to
refer to a government's policy to remove a non-citizen from its territory. We
note that the terms had different meanings under earlier versions of US
immigration law, and that now all such governmental actions are referred to in US
law as "removals." Nevertheless, for ease of reading and simplicity we use the
more commonly understood term "deportation" wherever possible.

[6]Memije v. Gonzales, 481 F.3d 1163, 1165 (9th Cir.
2007)(Pregerson, J., dissenting). Citing to Cabrera-Alvarez
v. Gonzales, 423 F.3d 1006, 1015 (9th
Cir.2005)(Pregerson, J., dissenting). See also Salviejo-Fernandez v.
Gonzales, 455 F.3d 1063, 1068 (9th Cir. 2006)(Pregerson, J.,
dissenting)(disagreeing with the majority's legal analysis and its "harsh
conclusion that removal is appropriate for" petitioner, who "was admitted as a
lawful permanent resident on August 20, 1969" and who together with his wife has
"two United States citizen children who are now thirty-two and twenty-seven
years old. After thirty-seven years in this country, [petitioner] is threatened
with removal from the country that he has called home for more than two-thirds
of his life.").

[7]
For non-legally present, column A x 30 percent. Jeffrey S. Passel, "The Size
and Characteristics of the Unauthorized Migrant Population in the U.S.," Pew
Hispanic Center, March 7, 2006, p. 8, figure 7, http://pewhispanic.org/files/reports/61.pdf
(accessed March 25, 2009)(showing that of 6.6 million illegally present
families, 1,960,000, or 30 percent, had at least one legally present or US
citizen child).

[9]
Column B x 2.44. The 2000 US Census found that 6.3 million households had a
foreign-born non-citizen householder. A "householder" is "usually the household
member or one of the household members in whose name the housing unit is owned
or rented." U.S. Census Bureau, Profile of the Foreign Born Population in
the United States: 2000, December 2001, p. 430. The Census Bureau found
that these 6.3 million households had an average household size of 3.44 persons.
Ibid., p. 4; U.S. Census Bureau, "Table FB1-Profile of Selected Demographic and
Social Characteristics for the Non-U.S. Citizen Population," Census 2000
Special Tabulations (STP-159), 2000. We estimate that this average
household size holds true for the foreign-born non-citizens being deported from
the United States for criminal offenses (that is, deportee plus 2.44 relatives
in each household).

[10]
Column C x 10 percent. Passel, "The Size and Characteristics of the
Unauthorized Migrant Population in the U.S.," p. 8, figure 7(showing that 10
percent of illegally present families lived in couples without children).

[11]
"ICE Arrests More Than 1,000 in Largest Special Operation Yet Targeting
Criminal Aliens and Illegal Alien Fugitives in California," Office of the Press
Secretary, Immigration and Customs Enforcement Public Affairs, September 29,
2008, http://www.ice.gov/pi/nr/0809/080929losangeles.htm (accessed March 25,
2009).

[12]
See, for example, "Colorado ICE Fugitive Operations Teams Arrest 45 Aliens,"
Office of the Press Secretary, Immigration and Customs Enforcement Public
Affairs, January 20, 2009, http://www.ice.gov/pi/nr/0901/090130denver.htm (accessed
March 20, 2009)(focusing on 3 out of 28 "criminal aliens," all of whom were
deported for sexually assaulting children); "ICE Removed More Than 3,000
Criminal Aliens, Status Violators from South Texas During June," Office of the
Press Secretary, Immigration and Customs Enforcement Public Affairs, July 11,
2005 (announcing the deportation of 562 "criminal aliens," ICE presumably chose
to highlight three deportees who were removed for "aggravated assault," "drug
trafficking," and "lewd and lascivious acts on a child"); "Philadelphia ICE
Deports 144 Criminals," Office of
the Press Secretary, Immigration and Customs Enforcement Public Affairs, June
22, 2005 (announcing the deportation of "144 criminals," highlighting three
non-citizens who were deported for sex offenses or stalking, and referring to
"other individuals" who were deported for "crimes such as homicide, heroin and
cocaine smuggling, fraud, weapons offenses, sexual assault, prostitution, and
extortion"); "ICE
Removes 758 Criminal Aliens from 5-State Area During July," Office of the Press
Secretary, Immigration and Customs Enforcement Public Affairs, August 15, 2006,
www.ice.gov/pi/news/newsreleases/articles/060815neworleans.htm (accessed May
30, 2007)(highlighting the deportation of two men: a Brazilian who was
convicted for assault with a deadly weapon, domestic assault, and unlawful possession
of a firearm; and a Jamaican who was deported for "unnatural acts upon a child;
providing obscene materials to minors; assault and battery; breaking and
entering, larceny and possession of a controlled substance"; the agency did not
describe the crimes of the 756 other immigrants deported during the same ICE
operation). Despite these many examples, in late 2008 and early 2009 there are
some ICE press releases that report in somewhat more detail: See, for instance,
"ICE Arrests 117 Florida Residents in Targeted Immigration Fugitive Operation,"
Office of the Press Secretary, Immigration and Customs Enforcement Public
Affairs, February 3, 2009, http://www.ice.gov/pi/nr/0902/090203miami.htm
(accessed March 20, 2009), noting deportees' "criminal histories that spanned
from assault, battery, DUI, aggravated battery, trespassing, larceny, burglary,
resisting arrest, soliciting prostitution, cocaine possession, marijuana
possession, molestation and transporting narcotics."

[15]Letter
from Margaret M. Elizalde, supervisory program analyst, U.S. Immigration and
Customs Enforcement, to Human Rights Watch, January 11, 2007.

[16]A
compact disk with some data was received by Human Right Watch in March 2008;
however, despite repeated requests we did not receive a complete dataset or the
codebooks necessary to translate the codes contained in the dataset until
August 2008.

[18]The International Covenant
on Civil and Political Rights (ICCPR), which the United States ratified in
1992, states in article 13 (to which the United States has entered no
reservations, understandings, or declarations), "An Alien lawfully in the
territory of a State Party to the present covenant may be expelled therefrom
only in pursuance of a decision reached in accordance with law and shall,
except where compelling reasons of national security otherwise require, be
allowed to submit the reasons against his expulsion and to have his case
reviewed by, and be represented for the purpose before, the competent authority
or a person or persons especially designated by the competent authority"
(emphasis added). International Covenant on Civil and Political Rights (ICCPR),
adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16)
at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23,
1976. Ratifications and Reservations for the International Covenant on Civil
and Political Rights, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=322&chapter=4&lang=en
(accessed March 25, 2009). The UN Human Rights Committee, which monitors state
compliance with the ICCPR, has interpreted the phrase "lawfully in the
territory" to include non-citizens who wish to challenge the validity of the
deportation order against them. In addition, the Human Rights Committee has
made this clarifying statement: "[I]f the legality of an alien's entry or stay
is in dispute, any decision on this point leading to his expulsion or deportation
ought to be taken in accordance with article 13…. An alien must be given full
facilities for pursuing his remedy against expulsion so that this right will in
all the circumstances of his case be an effective one." UN Human Rights
Committee, General Comment 15, paras 9 and 10. Similarly, article 8(1) of the
American Convention on Human Rights, which the United States signed in 1977, states,
"Every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal,
previously established by law … for the determination of his rights and
obligations of a civil, labor, fiscal, or any other nature." American
Convention on Human Rights "Pact of San Jose, Costa Rica," art. 8(1), General
Information on the Treaty, http://www.oas.org/juridico/english/Sigs/b-32.html
(accessed March 25, 2009). Applying this standard, the Inter-American
Commission on Human Rights has stated that deportation proceedings require "as
broad as possible" an interpretation of due process requirements and include
the right to a meaningful defense and to be represented by an attorney. Inter-American
Commission on Human Rights – Report No. 49/99 Case 11.610, Loren Laroye
Riebe Star, Jorge Alberto Barón Guttlein and Rodolfo Izal Elorz v. Mexico,
April 13, 1999, Section 70-1. For a more detailed discussion of the
international human rights laws that provide for the legal protections
summarized in this footnote, see Human Rights Watch, Forced Apart, pp.
45-81.

[19]
For a detailed legal analysis of the human rights laws at issue in this
context, see Human Rights Watch, Forced Apart, pp. 45-81.

[20]The Universal Declaration of Human Rights states in article
16(3), "The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State," and in article 25(2),
"Motherhood and childhood are entitled to special care and assistance." Universal
Declaration of Human Rights, adopted December 10, 1948,
G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948). The ICCPR states in article
17(1) that no one shall be "subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence," and in article 23 that
"[t]he family is the natural and fundamental group unit of society and is
entitled to protection by society and the state" and that all men and women
have the right "to marry and to found a family." The right to found a family
includes the right "to live together." UN Human Rights Committee, "Protection
of the Family," General Comment 19, the right to marriage and equality of the
spouses, art. 23, July 27, 1990. As the international body entrusted with the
power to interpret the ICCPR and decide cases brought under its Protocol, the
Human Rights Committee has explicitly stated that family unity imposes limits
on states' power to deport. Winata v. Australia, Communication No.
930/2000, U.N. Doc. CCPR/C/72/D/930/2000 (2001).

[21]For example, the US Supreme Court has held that the
"right to live together as a family" is an important right deserving
constitutional protection, and an "enduring American tradition." Moore v.
City of East Cleveland, 431 U.S. 494, 500, 503, n.12 (1977)(plurality). See
also Linda Kelly, "Preserving the Fundamental Right to Family Unity:
Championing Notions of Social Contract and Community Ties in the Battle of
Plenary Power Versus Aliens' Rights," Villanova Law Review, vol. 41, pp.
729-730 (1996)(discussing various non-immigration areas of law in which the
Supreme Court has stressed the importance of legal protections for family unity
and family life); and Nancy Morawetz, "Symposium: Understanding the Impact of
the 1996 Deportation Laws and the Limited Scope of Proposed Reforms," Harvard
Law Review, vol. 113, pp. 1950-1951 (2000)(discussing instances of members
of Congress and the INS expressing the importance of family in the immigration
context).

[22]For example, the United
States Supreme Court uses "strict scrutiny" to examine state policies based on
race, by balancing the right to be free from discrimination against any
compelling governmental interest in the policy under consideration. See, for
example, Grutter v. Bollinger, 539 U.S. 306 (2003); Korematsu v.
United States, 323 U.S. 214 (1944).

[23]Council
of the EU – Council Directive 2003/109/EC of 25 November 2003 concerning the
status of third-country nationals who are long-term residents, art. 12.

[24]UN Human
Rights Committee, General Comment 16, the right to respect of privacy, family,
home and correspondence, and protection of honour and reputation, art. 17, August
4, 1988.

[25]Article 17 of the ICCPR provides that "[n]o one shall
be subjected to arbitrary or unlawful interference with his privacy ... home or
correspondence…. Everyone has the right to the protection of the law against
such interference or attacks." The Human Rights Committee has explained that
this "guarantee[s] that even interference provided for by law should be in
accordance with the provisions, aims and objectives of the Covenant and should
be, in any event, reasonable in the particular circumstances." UN Human Rights
Committee, General Comment 16, para. 4, 1988. Further, the committee has stated
that the term "home" "is to be understood to indicate the place where a person
resides or carries out his usual occupation." Ibid., para. 5. Therefore, the
right to protection against arbitrary interference with privacy and home
encompasses those relationships and ties that an immigrant develops with the
community outside of her family. For example, the Inter-American Commission has
found that the right encompasses "the ability to pursue the development of
one's personality and aspirations, determine one's identity, and define
one's personal relationships." Maria Eugenia Morales De Sierra v. Guatemala, Session Nº 4/01, Case 11.625 (Jan. 19, 2001), http://www.cidh.org/women/guatemala11.625.htm.
English translation at: www.cidh.org/women/guatemala11.625aeng.htm (both
accessed March 20, 2009)(emphasis added).

[28]
The Refugee Convention and Protocol require that a refugee should be "allowed
to submit evidence to clear himself, and to appeal to and be represented for
the purpose before competent authority or a person or persons specially
designated by the competent authority." Refugee Convention, art. 32(2). UNHCR's
Executive Committee has explained that deporting a refugee under article 33(2)
"may have very serious consequences for a refugee and his immediate family
members … [and therefore should only happen] in exceptional cases and after due
consideration of all the circumstances."UNHCR Executive Committee,
Conclusion No. 7 (1977). The exceptions to nonrefoulement in article 33(2) were
intended to be used only as a "last resort" where "there is no alternative
mechanism to protect the community in the country of asylum from an
unacceptably high risk of harm."James C. Hathaway, The Rights of
Refugees under International Law (Cambridge, UK: Cambridge University Press, 2005), p. 352. Therefore, an individualized determination must occur before
deportation in compliance with article 33(2), during which states must weigh
two elements: that a refugee has been convicted of a particularly serious crime
and that she constitutes a danger to the community.

[29] UNHCR, Handbook
on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees
(Geneva: UNHCR, January 1992), para. 155. Note that the requirement that the
crime must be a "capital crime or a very grave punishable act" was a
description of what constitutes a "'serious' non-political crime" for the
purposes of article 1F. The "particularly serious crime" exception in article
33(2) is presumed to require that the individual refugee be even more dangerous
in order to fall under this exception. See Sir Elihu Lauterpacht & Daniel
Bethlehem, UNHCR, "Opinion: The Scope and Content of the Principle of
Non-Refoulement," June 20, 2001, para. 147 ("Article 33(2) indicates a higher
threshold than Article 1F … ").

[30]
UNHCR, "Nationality Immigration and Asylum Bill 2002: UNHCR comments relating
to serious criminals and statutory review," para. 3 (2002); UNHCR, Handbook,
p. 157 ("The fact that an applicant convicted of a serious non-political crime
has already served his sentence or has been granted a pardon or has benefited
from amnesty is also relevant.").

[31] The less
protective standard used by the United States is known as "withholding."
Withholding states that protection may not be claimed by a refugee who "having
been convicted by a final judgment of a particularly serious crime is a danger
to the community of the United States."8 U.S.C.
Section 1231 (b)(3)(B)(ii). A subsequent section states that for purposes
of interpreting this clause, "[A]n alien who has been convicted of an
aggravated felony (or felonies) for which the alien has been sentenced to an
aggregate term of imprisonment of at least 5 years shall be considered to have
been convicted of a particularly serious crime. The previous sentence shall not
preclude the Attorney General from determining that, notwithstanding the length
of sentence imposed, an alien has been convicted of a particularly serious
crime."8 U.S.C. Section 1231 (b)(3)(B). As this Section states, in
addition to all refugees convicted of aggravated felonies with five year
sentences, the Attorney General has statutory authority to send to persecution
refugees with sentences of less than five years. In a decision under
this statutory authority, the Attorney General has issued the blanket statement
that aggravated felonies with sentences of less than five years "presumptively
constitute particularly serious crimes," meaning that the non-citizen would have
the difficult burden of overcoming the Attorney General's presumption that his
or her crime was "particularly serious" in deportation proceedings.In
re Y-L, Immigration & Nationality Laws Administrative Decisions, vol.
23, decision 270 (B.I.A. 2002).

[34]
Aggregate numbers of non-citizens deported on criminal grounds have been
published by DHS on its website for many years. The figures for 1997 through
2006 (the most recent year for which data are available through these sources),
show that a total of 768,345 non-citizens were removed on criminal grounds
during that period.

[35]There
has been much speculation about an increase in the use of immigration
enforcement powers by ICE officials since the September 11 terrorist attacks on
the United States. While the dataset does reveal an increase in the number of
non-citizens deported on criminal grounds since September 11, 2001, it is
difficult to know how much of this is attributable to increased enforcement
motivated by the terrorist attacks, and how much to other initiatives by ICE to
increase enforcement more generally. In the 53 months between April 1, 1997,
and September 10, 2001, 340,882 people were deported on criminal grounds-a
monthly average of 6,431. In the 71 months between September 11, 2001 and
August 1, 2007, 556,217 people were deported-a monthly average of 7,834. Before
September 11 an average of 210 people were deported per day; after September 11
an average of 259 were deported per day. Of the 100 days with the highest
number of deportations, 99 occurred after September 11, 2001.

[37]
Due to rounding, for Table 2 and all subsequent tables, numbers may not add up
to 100 percent.

[38]Pew Hispanic Center, "Tabulations of the 2006 US Census American Community Survey," January
2008, Table 7, http://pewhispanic.org/files/factsheets/foreignborn2006/Table-7.pdf
(accessed March 26, 2009).

[40]It is possible that the ICE data here reflected only available
passport data and not actual country of return; USSR passports remained valid
for years beyond the demise of the Soviet Union, pending the transfer to
national passports in ex-Soviet countries.

[41]Human
Rights Watch wrote to the governments of the United States, Canada, France, Mexico, the Netherlands, and the United Kingdom between January 13 and March 10,
2009, raising our concerns about these removals and asking for additional
information. On March 18, 2009 we received a response from the government of
Mexico, indicating that some of the information Human Rights Watch shared in
our letter "undoubtedly has serious human rights implications" ("sin duda
alguna tiene serias implicaciones en el ámbito de los derechos humanos") but
that the Mexican government has "no knowledge of any case similar to those
mentioned" [by Human Rights Watch, that is, cases in which Mexican citizens
were deported to a third country] ("Hasta el momento no se tiene conocimiento
de algún caso de las dimensiones como el que usted menciona."). Letter from
Juan Manuel Gómez Robledo, undersecretary for multilateral affairs and human
rights, Department of Foreign Relations, Government of Mexico, to Human Rights
Watch, March 18, 2009. As of this writing, we have not received a response from
the United States, Canada, France, the Netherlands, or the United Kingdom.

[42]
"Deported U.S. Citizen is Returned to Family," Associated Press, August
8, 2007.

[45]Representative
Steve King (R-Iowa), "Comparing the Statistics," Statement to the U.S. House of Representatives, May 3, 2006, http://www.house.gov/apps/list/speech/ia05_king/sp_20060503_stats.html
(accessed March 20, 2009).

[46]
See discussion in subsection "Types of Crime forming Basis for Deportations,"
below.

[47]
Bill O'Reilly, "The Problem of Criminal Illegal Aliens is Now at the Tipping
Point," The O'Reilly Factor, Fox News, May 9, 2007, http://www.foxnews.com/story/0,2933,270974,00.html
(accessed March 20, 2009).

[48]
Letter from James T. Hayes, Jr., director, Office of Detention and Removal
Operations, U.S. Immigration and Customs Enforcement, to Human Rights Watch,
February 2, 2009.

[59]Ferguson v. Attorney General of the United States, 2007 U.S. App. LEXIS 3100 (3d Circuit, February 9, 2007).

[60]Deportees
holding the three immigration statuses of "refugee," "immigrant," or "parolee"
were placed in one "legally present combined" category, and illegally present
deportees were placed in a second category. We ran a logistic regression odds
ratio test to see whether there is a significant difference in the recording of
crime data between the two categories. Using the presence of crime data as the
output variable, the test leaves no doubt that there is a statistically
significant difference between the two categories' likelihood of having their
crime data recorded by ICE (chi squared = 119008.69, z=-270.81 (p > .000).
The odds ratio provided by this test proves with 95 percent certainty that
illegally present deportees were between 13.7 and 14.2 times more likely to
have crime data recorded than those in the "legally present combined" category.

[61]
We recognize that some additional persons with time-limited legal statuses,
currently grouped in the legally present category, may have overstayed their
visas, thereby transforming their status from legally present to illegally
present. Nevertheless, the ICE dataset recorded these persons as continuing to
hold a legal, albeit time-limited status. In addition, if they had simply
overstayed their visas, they could have been deported for that reason alone and
there would be no reason to include them in a dataset of individuals deported
on criminal grounds. For these reasons, we have grouped all such persons in the
legally present category.

[63]
"Immigration" is an offense category in the NCIC dataset that is used for those
instances in which the police officer chooses to write in detail what the crime
is, but the detailed description most likely comports with one of the offenses
for which there is a more specific code. For example, in the 2000 codebook,
there were three other immigration offenses: "illegal entry," "false
citizenship," and "alien smuggling." So, if the officer chooses to describe the
fact that someone, for example, provided 12 Guatemalans with false citizenship
papers, he could use the crime code "immigration" and write in that
description, but alternatively he could have simply recorded the crime code for
false citizenship.

[64]
"Dangerous Drugs" is an offense category in the NCIC dataset that is used for
those instances in which the police officer wants to write in detail what the
drug crime is. Officers are supposed to indicate a code separate from the
catch-all of dangerous drugs in order to specify which drug was at issue in the
crime. Dangerous drugs therefore includes all of the drugs that are separately
listed with different offense codes: hallucinogens (not including marijuana), heroin,
opium or derivative, cocaine, synthetic narcotics, marijuana, amphetamines, and
barbiturates, and also possession of narcotic equipment. See Federal Bureau of
Investigation, Criminal Justice Information Services Division, "NCIC 2000 Code
Manual," Washington, DC, http://www.leds.state.or.us/OSP/CJIS/docs/ncic_2000_code_manual.pdf
(accessed March 20, 2009 ).

[65]
"Cruelty Toward Wife" is an offense category used for the subcategory of
domestic violence crimes, including misdemeanors, committed against an individual's
spouse causing physical and/or mental suffering. See, for example, 8 C.F.R.
Section 204.2(c)(1)(vi). In some states, it may also include the failure to
make court-ordered alimony payments.

[66]
The separate category of "Cocaine" from "Cocaine – Sell/Possession/Smuggling"
exists to provide the police officer with a space to write in detail what the
crime is, but the detailed description most likely comports with one of the
offenses for which there is a more specific code. For example, if the officer
chooses to describe the fact that someone smuggled 10 kilograms of cocaine in
his automobile trunk, he could use the crime code "cocaine" and write in that
description, but alternatively he could have simply recorded the crime code for
"cocaine – smuggling."

[67]
"Cruelty Toward Child" is an offense category used for the subcategory of
domestic violence or child welfare crimes, including misdemeanors, committed
against a child causing physical and/or mental suffering. See, for example, 8
C.F.R. Section 204.2(c)(1)(vi). In some states, it may also include the failure
to make court-ordered child support payments, and a variety of violations of
child neglect statutes. See, for example, California Penal Code, Chapter 2,
"Abandonment and Neglect of Children," Sections 270-273.75.

[68]
"Family Offense" is an offense category used for the subcategory of domestic
violence or child welfare crimes, including misdemeanors, committed against a
spouse or child.

[69]
The separate category of "Marijuana" from "Marijuana – Sell/Possession/Smuggling"
exists to provide the police officer with a space to write in detail what the
crime is, but the detailed description most likely comports with one of the
offenses for which there is a more specific code. For example, if the officer
chooses to describe the fact that someone smuggled 10 kilograms of marijuana in
his automobile trunk, he could use the crime code "marijuana" and write in that
description, but alternatively he could have simply recorded the crime code for
"marijuana – smuggling."

[70]
"Rape – Strong Arm" is an offense category used to describe the crime of rape
committed with the use of force.

[71]
The separate category of "Amphetamine" from "Amphetamine –
Sell/Possession/Smuggling" exists to provide the police officer with a space to
write in detail what the crime is, but the detailed description most likely
comports with one of the offenses for which there is a more specific code.

[72]
The separate category of "Stolen Property" from "Receiving/Possession Stolen
Property" exists to provide the police officer with a space to write in detail
what the crime is, but the detailed description most likely comports with one
of the offenses for which there is a more specific code.

[73]
"Aggravated Assault – Police Officer – Strong Arm" is an offense category used
to describe the crime of aggravated assault against a police officer with the
use of force.

[74]
"Aggravated Assault – Nonfamily – Strong Arm" is an offense category used to
describe the crime of aggravated assault against an individual not a member of
the accused's family with the use of force.

[76]
"Sex offense" is categorized as an offense with the potential to cause harm
because it is a general code in the NCIC which could be used to categorize
potentially violent offenses such as "incest with a minor," but it also covers offenses
that are not necessarily violent, such as "homosexual sex." According to the
NCIC, crimes coded as "sex offense" should have a further code describing the
offense.